KAMA SAHU Vs. KRISHNA SAHU
HIGH COURT OF ORISSA
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Mohanty, J. -
(1.) Defendants are the appellants. It appears that D-1, (the husband of D-2) Satyabadi Sahu, Krishna Sahu and Laxman Sahu are four brothers. The family had some lands at, different places including lands in village Chandipadaro. Appellant 2 (D-2) had purchased, some homestead lands with a house thereon at Chatrapur. Satyabadi and his other brothers wanted, to take an interest in that homestead land of D-2, treating it to be a portion of the joint family property, but failed. It also appears that it was so arranged between the present plaintiff, Krishna Sahu and Satyabadi on the one hand, and the defendants-appellants on the other, that Krishna and Satyabadi would separately take the homestead land and the house of D-2 at Chatrapur in exchange for their lands that would fall to their share in the village Chandipadaro. Accordingly on 27-7-43, D-2 executed sale-deeds one in favour of the present plaintiff and another in favour of Satyabadi with respect to her homestead land and the house thereon situate at Chatrapur. But they, in return, could not execute any such deed in favour of D-2 in respect of their lands at Chandipadaro; but promised to do so after partition of their lands had been finalised. Admittedly the partition deed was effected between the brothers with respect to their joint family property on 18-2-44. Notwithstanding it, they did not execute any sale-deed in favour of D-2 as previously agreed Upon. It is why D-2 cancelled the two sale-deeds executed by her on 27-7-43. It should be noted here that the dispute between the parties went so far as to culminate in the initiation of 145 proceedings with respect to the disputed land. The Magistrate could not come to any finding as to which party is in possession of the disputed land, and he therefore kept the property under attachment and directed the parties to establish their right in the Civil Court. It is why the respondent filed a suit out of which this appeal has arisen for a declaration of his title to the property on the strength of the sale-deed executed in his favour by D-2 on 27-7-43. A similar suit was also filed by the present appellant against Satyabadi Sahu for a declaration of her title to the other portion of the homestead and for recovery of possession thereof.
(2.) The case of the plaintiff is that he has purchased the property for a cash consideration of Rs. 500/- and has acquired a good title to it on the execution of the sale-deed by D-2 and has been in possession thereof since his purchase. The claim was contested by both the defendants (appellants) mainly on the ground that in pursuance of an oral agreement for exchange of lands, D-2 executed a deed with respect to her Chatrapur land on the promise of the plaintiff (respondent) to execute similar deed in her favour with respect to her Chandipadaro land after the partition of that land had been finalised. Though the said partition was finalised in February 1944, the plaintiff did not execute any sale- deed in her favour, although asked for many a time. It is why she has cancelled the sale-deed executed in favour of the plaintiff; and the plaintiff has acquired no title to the property on account of his failure to execute a similar deed in her favour with respect to his own land.
(3.) Both the Courts below have concurrently held that in pursuance of an oral agreement for exchange of land as between the parties, D-2 has executed a sale- deed. Exhibit I in favour of the plaintiff on the promise of the plaintiff to execute a similar deed in favour of D-2 with respect to his Chandipadaro land after the partition among the brothers had been finalised, that the partition was effected in February, 1944, taut the plaintiff did not execute any Kabala in favour of D-2; and that notwithstanding it, the plaintiff has acquired a good title to the property on the execution of the sale-deed, Ext. I by D-2. They have further held that it is open to the defendants to legally enforce the specific performance of the contract for the execution of the sale-deed with respect to the Chandipadaro land. They have, therefore, decreed the plaintiff's suit. Against that decree and judgment of the appellate Court the defendants have preferred this second appeal.;
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